star-pagination">*Page 268 hour. He crossed to within one foot of the center of the street and there stopped to await the passing of two cars approaching from the north. He testified:

"After I got out there, I looked again to the south. As I looked to the south I saw this car still going north.

"Q. Where was it at that time, when you turned around to look, to the south?

"A. About 150 feet from there.

"Q. Did you notice how that car was running, coming north?

"A. Yes, sir.

"Q. What part of the street was it running in?

"A. Pretty much in the middle of the street, about right there (indicating on map).

"Q. Where was it coming in reference to where you were standing in the street?

"A. Right straight for me. That car was running at that about 40 miles an hour. When I saw that car coming directly at me and going at that rate of speed I dashed for the curb."

In turning back to the curb, was he guilty of contributory negligence as a matter of law? My Brother holds that he was negligent in turning back to the east curb instead of remaining where he stood until the south-bound car had passed, when he could have crossed safely to the west side of the street. It must be remembered that the plaintiff was standing one foot from the center of the street directly in the path of the defendant's car, which was moving toward him at a speed of 40 miles an hour. At that rate of speed, if he had remained where he stood, the automobile would have been upon him in 2 1/2 seconds. Ordinary care for his safety required him to move at once, and very naturally and prudently he *Page 269 moved into that part of the street where there was no car. There was a car in the west side of the street. The defendant was driving in the middle, and the east side was clear. To a man of ordinary prudence, going to the east side looked like a safe course to take, especially in view of the position of the defendant. He was out in the center of the street 150 feet away. He could see everything before him. He could see every move the plaintiff made. In these circumstances, the plaintiff had a right to assume that if he ran back to the east curb away from the path of the automobile the defendant would not follow him and run him down. But it is said that this way was a dangerous way and that he was guilty of negligence in choosing to take it instead of taking a safe way to the west. It is a rule too well established to require the citation of authorities that where one had two ways of escape from threatened injury, the fact that he took the one by which he was injured will not of itself render him guilty of contributory negligence, when, if he had taken the other way, he would not have been injured. As to whether the way he adopted was dangerous, it should be noted that it was safe at the time he chose it, and only became dangerous because of the negligence of the defendant.

The question of contributory negligence was for the jury. The court erred in directing a verdict. The judgment should be reversed, and a new trial granted. The plaintiff should have costs.

POTTER, NORTH, and FEAD, JJ., concurred with McDONALD, J.

*Page 270

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